Report 2011 - EFTA Court

VI THE SECOND MAIN PLEA, ALLEGING INCORRECT CLASSIFICATION
OF THE MEASURES AS “NEw AID”
Existing aid or new aid
Arguments of the parties
100 if the Court upholds ESA’s conclusion that the contested tax
provisions constitute State aid within the meaning of Article
61(1) EEA, the applicants contend that the provisions qualify as
“existing” aid under Article 1(b)(i) and/or Article 1(b)(v) of Part ii
of Protocol 3 to the SCA.
101 The applicants argue that the contested tax provisions did not
constitute State aid when they were introduced, but became aid
as a result of the evolution of EEA law and without being altered
by Liechtenstein. Therefore, Article 1(b)(v) of Part ii of Protocol
3 is applicable to the disputed provisions, either directly or by
analogy. According to that Article, aid is deemed to be existing
aid if it can be established that it did not constitute aid at the
time it was put into effect, but subsequently became aid due to
the evolution of the EEA and without having been altered by the
EFTA State.
102 The applicants submit that prior to the introduction of the
measures in 1997, with effect from 1998, the Commission had
made its view known on numerous occasions, such as in the
Belgian Co-ordination Centres case, that comparable measures
relating to intra-group activities did not constitute State aid. The
applicants contend that this view started to change in 1998,
following the publication of the Council’s Code of Conduct for
business taxation and the subsequent Commission notice on the
application of the State aid rules to measures relating to direct
business taxation. However, the Commission did not publicly
assert that the Belgian co-ordination centres scheme might
constitute State aid before June 2002, when its decision to open
a formal investigation on that matter was published in the Official
Journal.
Joined Cases E-4/10, E-6/10 and E-7/10 Principality of Liechtenstein, Reassur Aktiengesellschaft,
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Swisscom RE Aktiengesellschaft v EFTA Surveillance Authority